CTIA Launches Full Court Press on Title II

The latest round of court challenges to the FCC's reclassification of broadband as a Title II service has begun.

CTIA-The Wireless Association Friday filed its petition with the U.S. Court of Appeals for the District of Columbia Friday (July 29) for a full-court (en banc) review of the three-judge decision upholding the FCC's Open Internet order, confirming a report in Multichannel News/B&C.

CTIA argues that mobile is qualitatively different from fixed, something the FCC has previously acknowledge, and requires "far more complex and aggressive network management than fixed broadband requires," which is why it says the FCC was wrong to apply the same regs to both.

"CTIA agrees with other petitioners in these consolidated cases that the FCC acted unlawfully when it subjected broadband Internet access service to public-utility style, common-carrier regulation under Title II of the Communications Act of 1934," said CTIA in its petition. "But apart from that issue, the FCC’s reclassification

of mobile broadband service was unlawful for a second, independent reason: Congress forbade the FCC from imposing common-carrier status on mobile broadband..."

The FCC initially classified mobile broadband as a private radio service back in 2007, the court pointed out, considering it a “nascent” service rather than one reaching a substantial portion of the public, which would make it a commercial mobile service subject to common carrier regs. But this time around the FCC said that with hundreds of millions now using mobile to access the internet, it was a commercial service and should be classified as such. The court agreed.

But CTIA says that a mobile service can only be regulated under Title II as a voice service, not a broadband service, since the broadband component does not interconnect with the traditional landline phone service.

CTIA says a "bare" majority took a convoluted view of the definition the public switched network not because it fit, but because "believed it just makes sense for all Internet access services to be treated the same, regardless of whether the connection is fixed or mobile." But even if that were the case it said, "the clear statutory prohibition on common carriage...should have led the panel to conclude that no Internet access providers may be treated as common carriers, as CTIA has always argued."

Some have argued that recent Supreme Court decision signals that court is setting a new "major importance" standard for reviewing agency interpretations of statute. CTIA tried to make that case here.

"This Court’s en banc review is critical because this case is exceptionally important. The FCC has claimed, for the first time, the authority to regulate comprehensively one of the most important communication systems in human history. Few final rules of any federal administrative agency have ever had so much potential to affect the lives of so many Americans."

The U.S. Court of Appeals for the D.C. Circuit decision could be appealed to the Supreme Court. The deadline for that is 90 days after the decision, but for those who file en banc petitions, that deadline becomes 90 days from when the en banc decision is rendered by the D.C. court.